stop Illegal Hiring

Andrew Pacheco, chairman of “Stop Illegal Hiring,” talks about his organization’s ballot initiative that would deal with day workers and would give employers two strikes before their business is closed for hiring illegal workers.

Transcript:

>>>Ted Simons:
Tonight on "Horizon," we continue our series on the employer-sanctions law. A look at how the e-verify system works and how the law will be enforced. Also we learn about two initiatives regarding other employer sanction laws. That's next on "Horizon."

>>>Announcer:
"Horizon" is made possible by contributions from the friends of eight, members of your Arizona. PBS station. Thank you.

>>>Ted Simons:
Hello and welcome to "Horizon." tonight we wrap up our series on Arizona's immigration strategy by taking a look at the enforcement of the employer sanctions law. Here's a look at a system that will be used under the new law by employers to verify the legal status of workers.

>>Mike Sauceda:
Business owners and those representing business owners gather to learn about the basic pilot program, now called the e-verify system, shortly after the passage of the employer-sanctions law. The law penalizes employers who knowingly hire illegal aliens. The e-verify system will give employers legal cover under the new law. At the event, immigration services told business owners how the system worked. He told them e-verify came into existence in 1996 with the goal of reducing illegal hirings. It verifies a person's identity and social security number. Use is voluntary with about 19,000 employers using it nationwide and about 3000 here in the state of Arizona. Participants were told the web-based system is easy to use and provides results within three to five seconds after a person's date taste entered. The system can only be used for new employees after they are hired. In 92% of the cases, e-verify will tell employers the person they hired is eligible to work. 8% of the time, a tentative non-confirmation is received, and the employer has eight business days to correct the non-match, which may be the result of a name change or an error in a birth date. Those at the meeting were also told training takes about two hours and that the system is ready to handle up to 7 million employers. Also the ability to detect fraud length documents has been beefed up with a photo verification system and the ability to catch multiple uses of a social security number. One of those at the meeting has already started using the system at his workplace. Randy Pullen is chairman of the Arizona Republican Party. Why did he sign up?

>>Randy Pullen:
For two reasons. One, obviously we're going to have to start complying with the law January 1st, and I'd heard so many stories about how difficult it was to use and sign up that I was curious to see how it operated. Found it very easy to use, simple to use. Even someone as old as I was able to figure out how to do it on the internet.

>>>Ted Simons:
Here now to talk about enforcement of the employer-sanctions law is Pinal County attorney James Walsh. Jim, good to have you here.

>>James Walsh:
Thank you, Ted.

>>Ted Simons:
County attorneys will be in the lead in this, won't they?

>>James Walsh:
That's right. We're required to both investigate and also to bring the enforcement actions under the statute.

>>Ted Simons:
Will there be much variation in terms of county to county?

>>James Walsh:
Well, we're trying to avoid that. There's several different operations going on now. Civil deputies are meeting. There's a meeting of the prosecutors' council, a work group involving people from the federal side and also the governor's office and attorney general's office. There's a rule being proposed to the Supreme Court. I think most of the county attorneys would like to see then forced in a uniform manner, so we're trying to reach consensus on some of the issues raised in the statute.

>>Ted Simons:
I want to talk about punishment, the standard of proof, these sorts of things. Let's try to do it maybe through an example. Let's say I've got Ted's landscaping business and someone -- landscaping business and someone calls and says, I think you need to look into this guy. What's the burden of proof and what happens if we've got a guy that's not right?

>>James Walsh:
First of all, it's very important that I understands that the complainant, whoever brings this complaint, is not being frivolous and false. If they are, I'm required to prosecute them for a class III misdemeanor. So, in my county -- and I think in most of the counties -- I'm going to require anybody that wants to make a complaint to come in, fill out a written form, sign it before a notary, and give me some information that allows me to go forward with an investigation. Who, what, when, and why they think that the employer is knowingly and intentionally violating the law. That's really what this statute is after. It's looking to find employers who are knowingly or intentionally hiring unauthorized workers. And that's what I'll have to show.

>>Ted Simons:
Before we go only to the punishment phase of all this, wouldn't you lose anonymity by going what you just described?

>>James Walsh:
I don't see how I can find out if a complaint is frivolous if I allow somebody to be anonymous. In my county and I think in some of the other counties, we're going to require that the person identify themselves and they let us know what the basis of their complaint is. Otherwise we can't go forward with an investigation, and we really can't file a complaint in court as opposed to a citizen's complaint. The lawyers in my office are going to have to swear. They're going to file a verified complaint, meaning they swear under oath that what's in the complaint is correct. I think they need to have something from a member of the public that is willing to go that far also.

>>Ted Simons:
A member of the public says someone isn't right. Can't name the person, can't point the person out. I've heard this. You might want to check on them. Where do we go from there?

>>James Walsh:
We try to get as many of the circumstances as we can pinned down. When did you hear it? Where were you when you heard it? Who was involved? We get those items and, if that can be put into the written form, then I would have investigators from our office -- we're a little bit larger than most of the other counties except for Maricopa and Pima, and we have eight investigators in our office. Some of the small counties don't. And this law requires the county attorney to do the investigation. So I'd have one of my investigators follow-up on all the various parts that that complainant has brought to determine whether or not there is sufficient evidence to go forward with a verified complaint in superior court.

>>Ted Simons:
As far as punish. Is concerned, let's say we find out that the guy is undocumented. Punishment concerned?

>>James Walsh:
I want to make clear, because some people have said otherwise even on your show, that once that complaint is filed, the employer of course is going to have an opportunity to come to court, present evidence, show why or why not what we say is right, also to present evidence that might persuade the court, even if they have hired somebody who is unauthorized, that the circumstances would not require a full suspension. In the case of first violations, pretty generally it's up to a 10-day suspension of the business license. And those licenses you need to do business in Arizona. If it's a second violation during what's called a probation period, then your license can be revoked permanently, which basically would put somebody out of business.

>>Ted Simons:
There's a lot of concern regarding racial profiling with this law. How do you avoid that?

>>James Walsh:
Well, if I was of all, you investigate it evenhandedly. You investigate it and make sure, when someone comes in and says, well, I heard someone speaking a foreign language, I think these people might be illegal because they don't look like my family, that's not a sufficient complaint. You have to make sure that you're not just choosing those people who, by their appearance, might have an ethnic origin different than mine. You do that very carefully, because the federal law is very clear about nondiscrimination. Our state law of course requires nondiscrimination. And I think even the statute includes language that would say one of its intents is not to have racial profile be -- profiling.

>>Ted Simons:
Sounds like a lot of work, a lot of staff, a lot of personnel time, these sorts of things. Are you ready for this? Do you need more staff here?

>>James Walsh:
We're getting ready for it. Legislature passes laws every year. We're not always given extra lawyers to enforce new criminal laws. This is a new civil statute. My civil staff, my civil lawyers, smaller than the criminal lawyer staff in my office, we have investigators but we haven't been given any extra investigators. As one of the smaller counties, all we've really gotten out of an appropriation is about $37,000. We haven't really figured how to spend that little money and make it go far. But we're committed to enforce the laws that the legislature passed. That's what the county attorneys are supposed to do. And I'm sure my fellow county attorneys, even though some of them are even more strapped for resources than I am, are going to see that this law is enforced. That's what we swear to do when we become county attorneys, and we're not really required to agree with the policy of these statutes, but we are required to enforce them and enforce them evenhandedly and fairly for everybody.

>>Ted Simons:
To that end, how much cooperation, how many meetings, how many get-togethers have there been among county attorneys to try to get some uniformity here?

>>James Walsh:
I counted up to four groups this afternoon that have been meeting in one form or another to try and achieve uniformity. There's a group of civil deputies, a group of some of the criminal deputies under the prosecutors' council. There is a working group that involves people from the federal government. There's a proposed rule in the Supreme Court. Our office has participated in every one of those forums.

>>Ted Simons:
Does it concern you, though, that in the future there might be a disparity enough to the point where certain businesses might go to different counties and these sorts of things? Might always base themselves on certain counties.

>>James Walsh:
I can't control what businesses do. I can tell a business they're very welcome to come to Pinal County because we're going to enforce this law and all the laws fair lip and evenhandedly and enforce them to make sure that everybody meets their requirements.

>>Ted Simons:
As far as you can tell now, from the meetings and from obviously your office, you're ready?

>>James Walsh:
We're getting ready. There is a court hearing next company that's going to determine some of the questions that have been raised about the constitutionality of the statute. The Supreme Court, if it decides to adopt a rule, will do so later this year. Our office is meeting not only outside but internally getting ready to do this. And it's not January 1st tomorrow, Ted, so we have a little while more to finish getting ready, and we intend to be ready to go on January 1st.

>>Ted Simons:
Thanks very much for joining us.

>>James Walsh:
Thank you.

>>>Ted Simons:
Despite the passage of an employer-sanctions law, there are two initiatives being circulated for new employer sanctions. I talked to Don Goldwater, chairman of legal Arizona workers, about his initiative which would have employers lose their license on the very first strike. And, Don, thank you for joining us and welcome to "Horizon." your initiative, with this new law set to take effect, why is your initiative necessary?

>>Don Goldwater:
Couple reasons. Number one, when the governor signed the bill, she talked about changing the bill in the special session, opting out certain industries from that bill. We've had several legislators, republican as well, who have talked about killing the bill in the next legislative session. We now have a new initiative which basically is in conjunction or in competition with Russell's Bill and our initiative, and if that gets on the ballot and passes, then Russell's initiative and Russell's Bill is dead. So we have to continue on with this initiative because we're going to take care of the employer sanctions problem in the state.

>>Ted Simons:
Talk about what differentiates your initiative from the state law set to take effect.

>>Don Goldwater:
Essentially they are identical except for in one area, and that is that Russell's Bill is a two-strike bill. Ours is a one-strike bill. Russell could not get the bill -- the initiative that we're running, he couldn't get that through the legislature. There's no way. He got the best bill through that he possibly could, working with that, working with the same attorneys from fair and our groups like that, state legislature. We came out with a very, very clean bill, very, very clean initiative that we knew that could withstand the court challenges in the ninth circuit court of appeals all the way up to the supreme court.

>>Ted Simons:
You mentioned the governor wanting certain exemptions, things like hospitals, nursing homes, power plants, these sorts of essential services. Doesn't it make sense to keep those clean and perhaps safe from an action that might close them down?

>>Don Goldwater:
The power plants are under federal law, so they don't even come into play on this. I wish the governor would recognize that. The hospitals and other corporations, they have time to reevaluate their HR Department to make sure the proper training's in there. We go into the aspect of knowingly and intentionally. When a company uses the basic pilot program, the electronic verification system, it gives them a rebuttable defense to where they can say, I've come back and done everything correctly. No employer out there is an expert on forged documents. So by using the basic pilot program, the electronic verification system, what we're giving to business is an expert, independent third party sanctioned by the federal government to determine whether or not the documents they have are legitimate or not. That gives business coverage that they don't have today. Under federal guideline systems today, a 1324a, they talk about using things like the I-9, the social security, the driver's license. But the same thing further on down in that bill, in that law, that federal law, talks about any documents which can be forged or tampered cannot be used as identification to determine whether or not somebody's here legally in the united states.

>>Ted Simons:
Another competing initiative that looks like it's going to be with yours, certainly down the stretch toward the signature filing time, how does your initiative compare and contrast with that one?

>>Don Goldwater:
That's the stop hiring illegals initiative or what we like to call the 2007 comprehensive employer amnesty initiative where we use all federal laws to make the determination of what an illegal immigrant is, as to what a document is, unlawful document. They continually try to rewrite the definitions of all these things. They only use one law, 1324a. There are several laws that are on the books that you have to incorporate into your laws, which we did. 1324b, 1324c talks about penalties for document fraud. 1325a, improper entry into the United States, what the penalties are for that. 1328, importation of aliens for immoral purposes. Not everybody is coming into this country illegally to clean your house. Some people are coming into this had country illegally for prostitution. A lot of people are bringing drugs into this country. We have a lot of people coming into this country that want to do us harm. We need protection. Employers, who are legitimately trying to find the law, follow the law; need the protection of basic pilot program. They don't need the protection of a fly-by-night initiative such as this one that we think will be overturned in the courts.

>>Ted Simons:
Do employees, though, of companies where there is one bad apple that's found and 999 of them wind up losing their job because of one bad apple by your initiative -- do they have protection?

>>Don Goldwater:
They have protection. Again, it goes back to knowingly hiring an illegal alien. The Russell's bill and our initiative and even the stop hiring illegals initiative only work on new hires. So if our bill goes into effect in 2009, January 1st, 2009, they can only talk about employees that they hire after that date. Russell's bill goes into effect January 1st, 2008. His bill can only be enforced for employees who are after that date. If a company does its due diligence and is later found out to have hired a person who is here yellow after doing the basic pilot program, all that company is required to do is to turn that person over to ICE And fire the employee.

>>Ted Simons:
Real quickly, I understand as well that there's some criticism of your initiative in that it doesn't address the underground economy, employers that pay out cash to their employees. Respond, please.

>>Don Goldwater:
Well, there are federal programs for that. You know, we looked at some of the things that the other initiative that is talking about doing what they wanted to -- they want to put out paying cash for day laborers, that type of thing. They want to do it for five or more day laborers. But the average -- the federal average -- of how many people you pick up on a given job is two. So if you're only picking up two or three people and you've got an initiative that says we're going to go after people that hire five or more people, you're really not doing anything. It also doesn't talk about things like are you contracting the person, are they contract labor, are they doing it for -- you know -- services, that type of thing. The initiative that's coming out on this stuff does not handle it. When you get into 1324 and 1324a, the federal law does not talk about licensing. It talks about people who employ illegal aliens. The federal tax laws out there do not talk about illegal aliens. When you talk about tax fraud, it talks about people who are paying under the table. We had a case, I believe it was, under Bill Clinton -- it could have even been back as far as jimmy carter where people were upset because the federal government was saying, if you have a babysitter and you are paying that babysitter, you are required to pay unemployment, FICA, and social security. So those laws are already in place.

>>>Ted Simons:
Another initiative being circulated is called stop illegal hiring. It would create a law that would have a two-strike policy and would also deal with the black market in illegal alien hiring. I talked to Andrew Pacheco, who is spearheading the initiative effort. Andrew, thank you for joining us. Welcome to "Horizon."

>>Andrew Pacheco:
Thank you for having me.

>>Andrew Pacheco:
We have an employer-sanctions law set to go online. You've got an initiative regarding employer sanctions. Why?

>>Andrew Pacheco:
Well, you know, as I watched the legislature go through the process of creating what has now become a law, what was house bill 2779, it seemed to me that the legislature was really missing an opportunity to go after some of the root problems that are causing illegal immigration and allowing illegal immigration to flourish in our state. And so I talked to some other folks in law enforcement community, elected officials, a dry cleaner, regular Arizonans about how we could make an initiative that is enforceable and tough and, at the same time, fair.

>>Ted Simons:
Your initial initiative, if you will, was revised here in the past couple days or so.

>>Andrew Pacheco:
Right.

>>Ted Simons:
Why did you change it?

>>Andrew Pacheco:
I wanted to make it patently clear that our initiative was not intending to go easy on any employers who are hiring illegal immigrants and that we were really focusing on employers that were bad actors. The crux of the issue was that the initial initiative that we filed did not specifically delineate which licenses would be lost. Our initiative has the same penalties as the law that passed the legislature, but we took out the list of licenses that would be lost if you're caught, because it's a basic rule of statutory construction that, when you list some things in a class, then a later court will presume that you meant to take out other things. Well, we heard some criticism saying that we were trying to be easier on employers, that we didn't want to include articles of incorporation, et cetera, and so we revised our initiative to make sure that it is patently clear to everyone that we are not trying to limit the number of licenses or the types of licenses that can be lost. Essentially we're being more forward thinking. And I'd like to take just a second to go through this, and it might be a little bit technical, but for example, in 1992, there was no such thing as a limited liability company. The legislature created that type of business entity in 1993. Well, if you have a statute that lists business licenses in 1992 that doesn't include limited liability companies, then when they're created in 1993 then they won't be included. So we wanted to make our law as broad as possible and also forward thinking.

>>Ted Simons:
It also, does it not, though, in terms of the revisions, mean that an employer -- let's say the employer can be investigated, can go through all the punishment, but the business stays open.

>>Andrew Pacheco:
What we did was we expanded the definition of identity theft to include employers who knowingly accept identifications that they know are false, and so there's a criminal sanction attached to that.

>>Ted Simons:
Ok. Again, it seems to me like the revision makes it a little more focused as well on the employer as opposed to the business. It seems like what you're saying is, if a business with 100 employees gets hit with one bad employee, why should 99 lose their job in.

>>Andrew Pacheco:
That's exactly right. We want to go after the worst employers, go after identity thieves and people who use stolen identity. We don't want folks in Arizona who are going to work every day and then going home losing their jobs because of one bad decision.

>>Ted Simons:
Anonymous complaints? What does your initiative say about this?

>>Andrew Pacheco:
Complaints cannot be anonymous, and I think that that's -- it's an important fairness issue, I believe. We ought not to be encouraging a system where -- let me put it this way. The current law says anonymous complaints are a-ok and every single complaint must be investigated. Well, I don't know that the various and sundry county attorneys in this state are going to have the resources to investigate every single complaint, and I think the prosecutors ought to have some discretion. I also don't think it's particularly fair for, say, a nonunion shop to be the subject of several complaints from a union shop and then have to go through the court process, 'cause the court process costs money.

>>Ted Simons:
Do you worry, though, about a chilling effect if the anonymity is lost?

>>Andrew Pacheco:
I don't. I think that, if somebody has a reasonable complaint, then I would certainly encourage them to go forward and to make that complaint, and our initiative gives prosecutors discretion. So discretion to also prosecute folks for the false complaints. I have a background, having been both a federal and county prosecutor, and my belief is that the real way that these types of statutes are going to be enforced are going to be through -- if they're going to be enforced effectively, through undercover operations and the use of confidential informants. The complaint process is also important but is not the end all and be all.

>>Ted Simons:
Your critics are saying you're muddying the waters so that neither one of these things go through and the legislative process can go on and you can tinker that way as opposed to the firm hand of an initiative.

>>Andrew Pacheco:
Well, I don't care to tinker with the legislative process. We've seen plenty of bad legislation in the past. What I'm trying to do is put forth an initiative that is enforceable and is fair and will withstand a court -- and will withstand a court challenge, unlike the law perhaps that passed the legislature. I'm not going to put my name on something that's going to lose.

>>Ted Simons:
Thank you for being here.

>>Andrew Pacheco:
Thanks for having me.

>>>Larry Lemmons:
State lawmakers are trying to find more money for more roads. A couple of things they're looking at: toll roads and a sales tax hike. The state court of appeals ruled that denying bail time grants charged with felonies does not violate their constitutional rights. The journalists' roundtable Friday on "Horizon."

>>>Ted Simons:
That's it for now. "Horizonte" is next. Thank you for joining us here on "Horizon." I'm Ted Simons. Have a great evening.